Planning Bill

Committee of the whole House

Thank you, Mr Chair. I want to start with clause 182 and clause 183, and I want to start with clause 182 first because, again, there have been numerous amendments in Amendment Paper 709.

I want to start by checking, in terms of clause 182(e), where the Minister’s function here has changed to a national instrument: can I just check, rather than having national policy direction or national standard, that’s just an update for consistency, I’m hoping—checking with the Minister responsible for RMA Reform on that.

I’m also noting that paragraph (g) has changed quite substantially from the existing version and changed to “considering and investigating the use of fees, levies, incentives, … other fiscal measures and economic instruments under this Act”. I want to check with the Minister: what’s the rationale behind updating the language for that—particularly when you’re looking at fees and levies and incentives, other fiscal measures. This is something that we have been very aware of in the Regulations Review Committee, regarding the use of those particular methods when it comes to fees and levies in particular, so I do want to check that with the Minister. That’s my second question.

I want to move on to clause 183, noting that this potentially is possibly largely a carry-over from the existing legislation. I wanted to check: in this case, what would then be the interaction between the responsible Minister and the Minister of Conservation in their roles and jurisdictions as listed out in subclause (1)(a) and (b) and subclause (2)—oh, here we go: “or imposed on that Minister by this Act.”, yeah. I wondered if the Minister wouldn’t mind just checking: what’s the interaction between the Minister of Conservation and the responsible Minister?

Committee of the whole House

I think these can be dealt with relatively quickly. Clause 182: “national instruments” in the Act refers to national policy direction and national standards—so, rather than say “national policy direction” and “national standards”, “national instruments” is a catch-all.

In relation to paragraph (g), it’s just a redraft. It’s just literally redrafting something—old (g) is basically the same as new (g); it’s just a drafting change from the Parliamentary Counsel Office.

Clause 183, as the member Dr Lawrence Xu-Nan, I think, notes, is just a reflection of the status quo from the Resource Management Act, which carries over into the new Act in relation to the Minister of Conservation.

Committee of the whole House

Thank you, Madam Chair. I would like to draw the Minister responsible for RMA Reform’s attention to my proposed amendments to the amendments tabled by himself at 7.26 p.m. last evening. There’s a number of amendments which address several linked problems—what I believe are problems—in the Government’s scheme, and let me run through them. The first is that there’s no common standard for council compliance and, looking at the Minister’s amendment from last night, which is clearly an improvement on the amendment that was there before—

CHAIRPERSON (Maureen Pugh): Sorry, Mr Twyford, would I ask you to refer to the clause you’re speaking to in your amendment?

Hon PHIL TWYFORD: In my amendment, I’m speaking to new clause 188B, which is the first of several in my amendment, and they’re amendments to the Minister’s Amendment Paper 738 of last night, which is an improvement on what was there before. It says that in the case of councils responding to a determination that a land market is not competitive, the local authority must decide how it will address the matter and implement the decision in a timely manner.

The problem with this is that the council is required to decide how it will address an act or omission that contributed to an uncompetitive land market, but it doesn’t specify or set any kind of standard for what an adequate response looks like. The problem with it, essentially, is that the council that contributed to the problem is, effectively, left to judge whether its own remedy is sufficient. So that’s the first problem.

The second, I think, is that there’s no objective or enforceable timetable. The Minister’s amendment requires implementation in—quote, unquote—“a timely manner”, but there’s no deadline or common test of timeliness. Councils could respond inconsistently or defer meaningful action through lengthy processes, and that’s easy to imagine. Simply tying the council’s duties under proposed new clause 118B to a future compliance network and national direction risks weakening the immediate duty, because that framework will take some time to prepare. I’m going to address that point by basically putting in interim obligations until the framework is there. The Minister’s amendment doesn’t require the national direction that’s put in place to contain a defined compliance framework by a fixed date, nor does it specify the framework’s minimum content or require it to be reviewed in the case of a negative determination, which would potentially expose the deficiency.

Finally, I think the other problem is that there’s no balanced independent check on the framework. You would expect that the land market officer responsible for assessing land market competitiveness would have some kind of role in testing the framework. Conversely, you wouldn’t want to give the land market officer unlimited approval power or, effectively, a veto.

What my amendment sets out to do is, in new clause 188B, say that the council must decide how it will address the matter if the competitive urban land market compliance framework under new clause 188C has been included in national policy direction in accordance with that framework. If the national direction is in place, the council must work out what it’s going to do in accordance with that national policy direction. If, however, the framework has not yet been included in the national policy direction, it must do so by having regard to the determination of the land market officer. So that’s proposed new clause 188B(2)(a).

Then, secondly, the council must implement the decision, if that framework specifies an applicable time frame, within that time frame. If the national direction includes a time frame, it must address that within the time frame or, if not—in any other case—in a timely manner. I really would be interested in the Minister’s view on this. It’s an attempt to preserve and put in place an effective duty—

CHAIRPERSON (Maureen Pugh): The member’s time has expired.

Committee of the whole House

I appreciate what the member’s trying to do and, as I’ve indicated previously, last night, probably around this time, I have great sympathy for what he’s trying to do; agree with much of it. We won’t be supporting his amendment. There’s a few reasons. I mean, he says that the judge of the competitiveness of the land markets will become the council who created the problem in the first place. I don’t think, with respect, that is correct. The judge is the economic umpire, the statutory land market officer, and, as I said last night, we’ve got to get the balance right between—because there’s now essentially going to be three players in all of this: there’s going to be the council, the land market officer, and the Minister. The council and the community set the plan; the independent umpire—à la the Reserve Bank of New Zealand in relation to monetary policy, or the Commerce Commission in relation to price quality, regulation of water, and various different things—makes assessments; and there will be an assessment framework that has to be established. Then there’s national standards, and I referred the member last night to national policy direction.

The judge is not the council; the judge is the land market officer, and then the ongoing judgment about whether or not the response from the council meets the competitiveness tests is still the umpire, and the final kind of piece of the puzzle is the Minister, who has a more restrained role in the new system around intervention—and that’s actually by design. I hope we can agree: the last five or six years of Ministers battling with councils about land-use changes—and I had to go through it with Plan Change 120 in Wellington to a lesser extent, although people seem to care less about Wellington. Christchurch was another thing, where I just found myself in a statutory position of having to make these assessments, because that’s what the law said. Trying to try and explain it to the media was sometimes difficult, because that’s what the law said. Ministers find themselves having to make legal decisions all the time that they don’t necessarily even know they were required to make, but that’s OK.

The Plan Change 120 debate is relatively bruising for everybody. The member Phil Twyford who’s moving the amendment put an intervention, as Associate Minister alongside David Parker, into the Christchurch Council at the time in relation to their plan. It’s an uncomfortable position for Ministers to be in, and I think getting Ministers out of being the primary intervener on this—they still have the power in some circumstances; you still need to have that, but we’re redressing the balance somewhat so there’s someone in the middle who is making the assessment and the councils are the ones doing the responses. I mean, there’s room for debate about whether or not we’ve got that balance right. There’s some fleshing out of the national policy direction to do, which I think is important.

In relation to time frames, I’m advised that they can be set through regulations. More generally, this goes, I suppose, to a fundamental—maybe—distinction between members as to where various provisions should be in the funnel between the primary legislation, the national policy direction, the standards, and the regulations. There is room for debate around what should be in what, and we’ve tried to adopt a principled approach, which is: keep the funnel structure in place, and national direction is a national direction. That sort of fleshing out of that, particularly around standards, comes below—we can have an argument about what should be in primary legislation and what isn’t. I think we’ve got the balance about right. We can always come back to it. I’m not completely ill-disposed to what the member is proposing.

Committee of the whole House

Well, OK, but my amendment also proposes a new clause 188C, which would require a competitive urban land market compliance framework to be included in the national policy direction within 12 months after the commencement of that section. That currently doesn’t exist, and I’m a little baffled as to why the decision has been made not to put that kind of requirement into this bill. If the current Minister is in this particular role, I can see that this kind of thing would happen, but we’re trying to set up a durable legislative framework here that will effectively steward the development and the implementation of competitive labour markets a long time into the future.

I would have thought that the requirement as set out in new clause 188C that you do have a compliance framework in place means that within a period of time from commencement, there will be, effectively, a mandate and a context for the land market officer and for councils to operate. If that’s not a good idea, I’m interested to hear why the Minister thinks so. Thank you.

Committee of the whole House

Thank you, Madam Chair. I do want to continue focusing my contributions in this part mostly on the amendments that the Minister has made on Amendment Paper 709. The first one is new clause 183B, which is a new addition on the delegation of functions by the Minister to the Environmental Protection Authority. I do want to check in this case, when we’re looking at the delegation—and this may have been referred to, but it’s a new clause section here—on what would be the degree that the Minister may consider in terms of that particular delegation, because even though its function is to monitor the implementation of the effects of this bill, it is still reasonably broad. So I do want to check what the scope of that monitoring is in clause 183B.

I do want to check clause 184A, where there is the insertion of new subclauses (1A) and (3). I want to start with new subclause (1A), which is around “(b) may perform its functions to control aquaculture activities in the coastal marine area”, particularly when it comes to the “effects of aquaculture activities on fishing and fisheries resources.” Now, this can also be quite broad because, as we know, for certain intensive aquaculture areas, it has a broader impact on the fish stock in the general area, particularly when it comes to marine pollution, etc., and the way that aquaculture itself can be conducted. We’ve seen that both domestically and also in overseas jurisdictions. I do want to check, then, in terms of new subclause (1A)(b) of clause 184A, what would be the expected or, I guess, the reasonable scope for regional councils when they’re looking at that particular effect.

In new subclause (3), I just want to clarify this particular point: does it mean that a regional council in considering whether the proposed activity would give effect to public access “to and along the coastal marine area”, it does not need to technically comply with subclause (2) in that case? Would that be the correct reading of new subclause (3)?

Now, I want to leave section 18 of the Natural Environment Act to the next bill, but I just wanted to ask in this case whether it is the correct reading that if a regional authority considered that public access to or along coastal marine areas is of vital importance, they can disregard what is in subclause (2). That’s, I believe, three questions to the Minister.

Committee of the whole House

I’m not 100 percent sure it was three questions.

Dr Lawrence Xu-Nan: Oh, there were two before that.

Hon CHRIS BISHOP: Yeah, I missed those, I’m sorry, but I’m sure other people were listening. While we work out the answer to new clause 184A(3)—I think the answer is yes, by the way, but we will clarify it in the interests of transparency—I just want to deal with Mr Twyford’s point.

As I understand it, he’s basically proposing we set a 12-month bar. His current tabled amendment, as I read it, is a lot deeper than that. I’m prepared to consider a tabled amendment that limits to just the 12 months, I think—I just want to take a bit of time on that. There’s a money issue. Times are tight, in case he hadn’t noticed, and so I just want to be reassured that we could do it within the resources available, because it creates a—we haven’t got the money for the statutory land market officer yet. That’s subject to a future October Baseline Update and March Baseline Update.

Hon Phil Twyford: That’s why it’s a movable feast.

Hon CHRIS BISHOP: Well, a little bit—a little bit. But it’s OK; we’ll get there. I mean, we’re not—you know, in the time I’ve been speaking, the New Zealand Government has spent tens of millions of dollars, and so I think we can make it work. We’ll get there, and so I’m prepared to contemplate a 12-month amendment. I just want to have a think about that and take a little bit of advice, and so I’m not committing to it. But if we don’t support the amendment, I will commit that we will have one in place within 12 months—that’s certainly my intention. It’s absolutely very important for the reasons the member has outlined, and so I’ll just contemplate that.

Committee of the whole House

Can I ask the Minister, in that case, whether or not, alongside specifying a 12-month time frame, he would agree with some of the points made under new clause 188C(3), which set out some of the parameters? It doesn’t set actual content, but it does set out the parameters of what would be included in a land market compliance framework.

Committee of the whole House

Thank you, Madam Chair. Right, I think this is my first contribution on Part 5, “Key roles”, and I’m going to start at the start. On Amendment Paper 709, right up the front, in clause 182, “Functions of Minister”, it says that “The Minister has the following functions under this Act: (a) recommending the making of a national instrument”. Now the word “approval” has been struck out and replaced with “making”, but I think that is semantics. When you read through the rest of the bill, it’s to do with how the Minister gives the Governor-General a recommendation, and then she makes an Order in Council.

An important and fundamental point to the whole system is how important the role of the Minister is here with regard to the national instrument. Sure, the Governor-General has to make an Order in Council, but it is on the recommendation of the Minister, and I would just like to put to the Minister that in another part I had suggested a board of inquiry process for the Minister. I’m not sure if the Minister responsible for RMA Reform was in the chair for that, but I would be interested in his views on a board of inquiry where a recommendation was made by the board of inquiry, or the board of inquiry makes a recommendation to the Minister—which I think is what my amendment was—and then the Minister makes the recommendation to the Governor-General. That should give the Minister some cover against, one, being lobbied—that’s a real thing, and I’m not saying that about this Minister; just any Minister—and, two, against judicial review proceedings, as well. That’s one set of questions.

Committee of the whole House

Mr Twyford asked if I’d agree with his clause 188(3)(a), (b), and (c), or clause 188(c) amendment, actually—his points around the framework. The short answer is yes, and the national direction released on Monday contains much of that. I mean, it’s an illustrative draft, and so I will welcome his feedback, alongside other competitive urban land market legends, on the national policy direction.

There’s a small subset of people in this country who care about it. Phil Twyford is one of them, I’m the second, and I can probably name them.

Grant McCallum: Nick Smith—would he be one of them?

Hon CHRIS BISHOP: No, Nick Smith is not a competitive land market legend. Benno Blaschke, Chris Parker—that’s Treasury—Dr Eric Crampton, Hannah Ouellet, who works for me. Who else?

CHAIRPERSON (Maureen Pugh): I think we’ve drifted off the bill.

Hon CHRIS BISHOP: We have—we have. Kirdan Lees—I just wanted to give them a shout-out. They’ve done God’s work.

Righty-o. The short answer is, yes, I agree.

In relation to the key roles—yes, sorry, Rachel Brooking’s question. Yeah, so I wasn’t in the chair for that session, although I have been having an extended dialogue with the Rt Hon Simon Upton about this point.

Hon Rachel Brooking: I might have seen him today.

Hon CHRIS BISHOP: What?

Hon Rachel Brooking: Who I saw today—he was in.

Hon CHRIS BISHOP: You saw him today?

Hon Rachel Brooking: He was in at lunchtime.

Hon CHRIS BISHOP: Of course he was—yeah. So Simon Upton has been in dialogue.

Look, I’m not opposed to it. I think the point I would make is that some people seem to have discovered that the Government has powers of national direction, just in, like, the last kind of two months. People have suddenly woken up to the fact that the Government, via the Minister, can issue national direction. That’s always been in the Resource Management Act (RMA), and, actually, the failure of the RMA, arguably—in fact, many people say this from 1990 to 2007, really—was that we didn’t do any of that; we just left it over to the councils, and the Government was not didactic enough about the fact that renewable energy in a country blessed with abundant renewable resources should be easier to develop than it is, you know?

We didn’t get serious, frankly, about urban land markets until the National Policy Statement on Urban Development Capacity, which was a Nick—actually, that was a Nick Smith thing, so maybe he is a semi-legend on the competitive land market front—but then Mr Twyford supercharged things with the National Policy Statement on Urban Development 2020. That was central government recognising that land markets matter and urban density matters for our cities and productivity and growth and all the things mentioned in it.

So national direction is there now. What we are trying to do is create a much more coherent document so that you don’t have to go to the Ministry for the Environment—or the Ministry for Cities, Environment, Regions and Transport as it is now—website, and print off some ridiculous PDF, and the terms are different and they don’t match. It’s all in one place: it’s called New Zealand’s Planning System National Policy Direction.

Hon Rachel Brooking: Oh, like our National Planning Framework.

Hon Damien O'Connor: Ha, ha!

Hon CHRIS BISHOP: What’s that?

Hon Damien O'Connor: Come on!

Hon CHRIS BISHOP: Well, that’s what it looks like.

Hon Damien O'Connor: Until the lawyers get hold of it.

Hon CHRIS BISHOP: No, no, no—well, yeah, maybe you’re right. But there is a merit in being able to pick it up—pick it up—and say, “Righty-O, I’m a council, what am I required to do?” “Housing and development”. “The planning system plays a key role in allowing more people to live well in our … cities.” “Sub-themes”: “Competitive urban land markets”, “Well-functioning urban areas”, “Well-functioning rural areas”, and “Natural hazards”. Directives: “To enable competitive … land markets: a) spatial plans must identify an abundance of areas for urban development, so there is no expectation of scarce land supply for future development.” That is a draft directive to councils around spatial planning.

There is a natural hazard theme, which is on page 23. “land use plans must ensure natural hazard risks associated with housing and development are managed by: a) using an approach that is proportionate to the level of natural hazard risk”. Now, this actually is already the law. There is a National Policy Statement Natural Hazards. Much of the grunt work was done by the previous Government; we picked it up and put it in place, we made a few tweaks. The devil’s in the detail with this stuff.

Infrastructure—there is a “Policy intent”. There is a strategic infrastructure priority: “To enable the timely and efficient delivery of new infrastructure … land use plans … must: a) recognise and provide for the national, regional and local benefits of infrastructure”. Now, that picks up on the work that we did in the last year or so on the National Policy Statement for Infrastructure, which we didn’t have—central government did not send a clear message through the planning system architecture that infrastructure is not a nice-to-have; it’s a must-have. Yes, there’s obviously things you have to balance against that: you know, wind farms create—you know, birds die; and, you know, building the roads, you’ve got to manage the effects of building a road; and there’s frogs and lizards and skinks and all that stuff that you have to worry about.

Hon Rachel Brooking: Bats.

Hon CHRIS BISHOP: Bats, yes. I draw the line at the dolphin funnel that the Auckland Council is demanding for the building of the North West bus rapid transit.

Hon Member: Oh, wow.

Hon CHRIS BISHOP: I know, I kid you not—I kid you not. So you have to take account of all those things, but there’s been no way to take account of that in the system.

We already have national direction, and, actually, everybody agrees with national direction because everyone supports the idea of a renewable energy thing, everyone supports an infrastructure thing. Actually, one of the great untold success stories of the last three years is alongside fast track, and this series of bills, is the biggest series of changes to national direction ever in the RMA. I got pretty disgruntled when I saw The Dom editorial—oh, sorry, The Post, as it now is—The Post editorial saying, “Oh, well, the Government stopped focusing on fast track and took their eye off the ball.”, neglecting that we now have a National Policy Statement for Infrastructure, we now have a strengthened national policy statement renewable, we now, for the first time in New Zealand history, have national standards for papa kāinga housing, for example, which has been a dog’s breakfast up and down the country, where councils have made all sorts of weird and wacky random rules around the simple proposition that mana whenua should be able to use their own land to build papa kāinga housing, so we now have national standards in relation to that, and I acknowledge the Hon Tama Potaka—

CHAIRPERSON (Maureen Pugh): Minister, can you remind me what question you’re answering?

Hon CHRIS BISHOP: I’m answering the question around the ministerial powers in relation to national direction and in relation to boards of inquiry.

We now have electric vehicle – charging standards, for example. I mean, why do you need to go and get a resource consent to put the same charge net, or Merdian charger in, in council car parks? It’s nuts! Well, now you don’t have to, because they’re permitted activities under the RMA and they’ll carry over with the new thing.

I’m not opposed to the idea of boards of inquiry and feeding into the power of the Minister, but I would just point out that there’s quite a bit of stuff in there already. The member referenced it herself in relation to—clause 61, isn’t it?—the making of national instruments. There has to be various different reports and, firstly, they’ve got to follow the goals and you’ve got to notify everybody.

Look, I’m not opposed to the idea that there should be some more separate processes, but I just reject this idea wholesale that national direction is new; it isn’t. I reject the idea that it is the arrogation of power to the Minister or central government. This is sort of like ill-informed commentary: this is like untrammelled power for the Minister to do all these various different things. It’s not accurate—it’s not accurate.

Committee of the whole House

Thank you. I might respond to that contribution from the Minister responsible for RMA Reform, given that he’s raised these issues. I’ve got just some little points to make. I’m very pleased to hear that the Minister would consider some additional mechanisms to be available for making national instruments. That is good. I don’t know where in the process he would put them now, given we have covered off that part, but I’m sure we could find a solution to that if he wanted to do that.

I would also note that I agree with the Minister that there has been national direction before, and I agree that it is mind-boggling—is that a word? I don’t think it is: mind-something—that that national direction was inconsistent with other national directions. Clearly a totally inefficient process. So it is good that it is being put in one instrument and that, of course, is what—and the Minister can count how many times I’ve said this now—the Natural and Built Environment Act was doing: a planning and national planning framework for that very reason. I would just remind the Minister of that and, of course, the work being done on that infrastructure national direction.

It is good that we can agree that it’s important, but what the Minister was reading out before—and I have not gone through his new draft document, because I’ve been in the Chamber—a lot of what he just read out then did sound like clauses that we’ve been traversing in this legislation, so I’m not sure how much meat it was putting on the bones. There may be many other parts of it that do put meat on the bones. It’s that meat on the bones that is important in terms of making sure there is—there is—some good mechanisms and some good process, because if the Minister is going to put dramatic meat on the bones—this is a very strange metaphor that I’m giving here, but I’m going to go with it anyway—then, the Minister might want some covering. So I’m glad that he has said that he would look at another mechanism to give some safeguards there.

Now, I will move on to some new questions on this part. One is just a general question about clause 186, which is “Monitoring and information gathering” and there’s also regulations can prescribe that monitoring and reporting. I’m not sure if there is any substantive difference in the change at new subclause (4).

My question to the Minister is: how does he see this relating to something that he’s mentioned in other contributions about the digitalisation of data, and where that data sits? He’s described it in the past as being a significant proportion of Vote Environment. How does that relate to this monitoring and information-gathering role? That’s one question.

I will go on, across to clause 193, which is “Transfer of Powers”. This reads to me that it’s very similar to section 33 of the Resource Management Act (RMA), but of course it doesn’t include iwi authorities. If the Minister can confirm that that is the difference—clause 193, similar to section 33, but sans, without, the iwi authorities.

That leads into—and I’ll stop at this one before we get into iwi participation agreements—clause 197, which is “Joint Management Agreements”—again, very similar to what is found in the RMA, but, again, it’s just public authorities and there’s no mention of iwi authorities. So the question is: is the main difference between section 33 of the RMA and clause 197, “Joint Management Agreements”, and the relevant section that’s fallen out of my head of the RMA that removal of iwi authorities?

Committee of the whole House

Thank you, Madam Chair. I’m keen to take up what was—if I heard correctly—an offer from the Minister to do some more work on this amendment. If I heard correctly, the Minister’s not up for our new clause 188B, which I think he thinks is a bit draconian. It would require councils to address the matter within the terms of the urban land market compliance framework and national direction, so we’ll put that to one side.

If I heard correctly, the Minister is agreeable with the idea of a requirement to ensure that the compliance framework is included in national policy direction no later than 12 months after commencement. What I’m keen to know is whether or not, alongside that 12 months’ provision, including some of the basic parameters of the compliance framework would assist the process in his view. Then there’s a couple of other matters of principle that I’m interested in the Minister’s view on.

Clearly, one wouldn’t want this framework to be a licence for central government to write every zoning map, and I know that’s not his intention. Clause 188C(5) in my amendment expressly prevents the compliance framework from requiring a land-use plan to include or exclude specific plan provisions. The national direction is intended, I think, to supply a kind of discipline here—a particular meaning of competitive land market goals, directions on how plans must avoid contributing to an uncompetitive market, required outcomes and time frames after an adverse determination by the land market officer, and so on. Does the Minister agree that national direction should set the outcome and time frames, while leaving the council to pursue the particular plan provisions that they want? Also, I’d be interested to know whether he accepts that the framework must be capable of addressing different degrees of competitiveness—or uncompetitiveness—rather than the three options that were included in his amendment.

The other issue of principle, I think, is the idea that the independent land market officer should have some say in the development of the national compliance network that he or she will be responsible for operating under. In my amendment, I’ve proposed a series of provisions on page 2 that are designed to set out a process by which the Minister can’t just impose the compliance framework. The Minister is required to get agreement in the first instance from the land market officer, who’s going to be the independent expert here, but while not giving the land market officer an indefinite veto. That process is there to try and put in place a kind of balance that respects the Minister’s overall governance and leadership role while respecting the independence expertise of the land market officer.

Committee of the whole House

The short answer is yes, and I accept that the new Schedule 10A in my Amendment Paper 709 looked binary, but in reality, I suspect they will not be. The statutory officer may make one of the following determinations: competitive or competitive. The truth is, there are obviously things in the middle of that, and my expectation will be that they say that, and at an appropriate juncture we may need to return to make that clear.

I think if you read it in the context of clause 3(4), a statutory officer must publish a determination with the following statement of reasons, factors contributing to that, why, etc., so I think it’ll become clear.

In relation to his tabled amendment, or Arena Williams’s tabled amendment, the problem with it is that, firstly, the competitive urban land market compliance framework is a new thing. My amendment talks about the assessment framework, which is a legal requirement for the statutory officer to establish. The question is that there’s no time frame for that, but certainly the intention is that be done quickly, because it’s part of the scheme that we’re developing. I think we could try and get it in place within 12 months.

In relation to Rachel Brooking’s questions, yes, clause 193 and clause 197, in relation to transfer of powers and joint management agreements, the iwi authorities are not included in that, on the basis that we wanted them to only be able to be included with public authorities with elected members. That is a deliberate change. In relation to her point around data, yes; this is a bit outside the scope of the bill but relevant to the extent around the compliance monitoring and the system data functions. The new digital system—for which we’re yet to invent a name, but I welcome suggestions, maybe not now—

Hon Rachel Brooking: “Bishop Start-Up”.

Hon CHRIS BISHOP: Bishop Start-Up?

Arena Williams: “Bishop Moves”.

Hon Rachel Brooking: No, no, we can do better than that.

Hon CHRIS BISHOP: OK, well I welcome your feedback. The new digital system will provide rich data—

Hon Rachel Brooking: “Bishop’s Bits!”.

Hon CHRIS BISHOP: What’s that? What’s that one? No, OK, you don’t want that one on the Hansard record? Let’s hope they didn’t catch that, because if I respond, it’s in the Hansard, so let’s hope they didn’t hear it.

CHAIRPERSON (Maureen Pugh): I think you just responded.

Hon CHRIS BISHOP: Let’s look forward to that one. It will provide a rich vein of data for the system. That’s partly what we’re doing here. There’s big investment coming in, big investment, to be honest. There’s a lot of councils very worked up about the new planning system—which I understand up to a point—but what some of them seem to have neglected is that central government is making a sizeable investment—hundreds of millions of dollars over time—into standing up the back-end system that they will be able to use. It will take the take the pressure off them—going off and spending millions on IT upgrades for 78 different systems around the country. We’re entering the modern world here. It’s a Government IT project, so it’s got a wee way to go. There’s been some experiences on that, but I’ve got confidence in the team. We’re working hard—I covered all that off last night, so there’s no point going further into that.

Committee of the whole House

Thank you, Madam Chair. For the Minister responsible for RMA Reform, for something completely different, I’ll just take him back to clause 184. This is just really a result of, I guess, a previous life and some work that was done in the House, and it’s around the duties of territorial authorities. It relates to clause 184(2) here—that, in undertaking its duties, the territorial authority must look at “(c) public access to and along the coastal marine area, lakes, and rivers:”. I guess my question for the Minister is: with the directives, is he going to offer more clarity than had been the case in legislation for quite some time? And I guess that that goes back to what’s been called the Queen’s Chain.

Public access, or the assumption of public access, to waterways and lakes hasn’t been a reality across much of the country, and so the previous Labour Government did set up the Walking Access Commission, but it’s actually now the Outdoor Access Commission, and it’s charged with trying to negotiate where there are blockages of access—as assumed by many of the public—to these waterways. My question to the Minister is: will we get a clearer outcome when there is subdivision and when we have territorial authorities overseeing what is rightfully identified in this piece of legislation as a responsibility, alongside outstanding natural features and landscapes—and I won’t get into that. But, for public access to and along coastal marine areas, lakes, and rivers, will that be an improved regime?

I’ve got to acknowledge that the Government is certainly being ambitious in this area. Although I think that with the Minister getting up and showing us that humble little document that he had in his hand there and saying, “This is going to solve everything.”—there are many things that the Minister has been called, but naive is not one of them, and when I look at the paper here in front of me, which forms the basis of the legislation we’re passing, things are not going to be simple. I’ve said before to the Minister that he doesn’t have to reply, but he can if he likes. Can he give us a guarantee that there’ll be less litigation over all of these things than we’ve seen through the Resource Management Act—or, indeed, more, as I predict?

I’ll come back to the key question, which, really, is the one around public access and whether the Government and the Minister are taking the opportunity to improve that and offer some clarity over what are changing waterways across the country. There’ll be some irrigation canals that, effectively, are privately owned but are public water, and then the question is: are they available now for fishing or other activities that the public would assume they are? Indeed, that’s a real dilemma in places like the Mackenzie. I’ll leave it to the Minister.

Committee of the whole House

I’m advised that this relates to the requirements for esplanade reserves when subdividing next to rivers and lakes. It has the same approach as in the Resource Management Act (RMA).

In relation to Damien O’Connor’s questions around litigation—well, firstly, just on the national policy direction, I’m not claiming for a moment that this is the answer to everything. If that were true, we would have solved the RMA problems 30 years ago. We haven’t, but it is a step forward, I hope, and you’ve got to start somewhere. It is complicated. As I said to some colleagues the other day, there are about eight people in the country who understand the RMA. I’m not sure I’m one of them and I’m the Minister, and so that probably tells you all you need to know.

We are trying to simplify things. It is complicated. Will there be litigation? Yes. Will it be a bit frustrating? Yes. I am sure there are environmental lawyers salivating at the prospect of getting involved in resource management law again, with a whole new statutory regime, national direction, and all the rest of it, but we are trying to make things as clear as possible through the funnel system, which has been widely discussed already.

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): You’re a funny guy! Lawrence Xu-Nan.

Committee of the whole House

Thank you, Madam Chair. I do want to thank the Minister responsible for RMA Reform for his responses to my questions thus far; I think they’ve been very helpful. To the Minister’s final comment: in terms of people potentially watching, or in the future referring to the Hansard, having the ministerial intent is really handy, and potentially will provide further clarity.

I do have two other questions. Please correct me if I’m wrong, Minister, if this has already been answered, but the new subclause (4) that’s been added in clause 186 added specific requirements when you’re looking at “monitoring, reporting, and information gathering for the purposes of this section”, things like “(a) indicators or other matters” and “(b) standards and methods that apply to the monitoring.” Can I just check with the Minister on why the Amendment Paper 709 added specificity for that clause?

The next one I’m looking at is clause 197(4), and again this is a new insertion on Amendment Paper 709. This is page 160, and it’s to do with the definition of a joint management agreement (JMA). I’ve checked, and there’s been other times where joint management agreement has been used as well, but it says—in the context of this clause, i.e., clause 197 and clause 198, this will now be the definition for JMAs. There possibly is a definition for JMAs in other clauses, so I just want to check that any other use of JMA that’s not in clause 197 or clause 198 will be defined under whatever definition of JMA is in other areas, and this definition is specifically just for clause 197 and clause 198. If that is the case, will the Minister also explain what the difference is between this definition of JMA, specifically to clause 197 and clause 198, compared to other uses of JMA?

Finally, I just want to seek a clarification from you, Madam Chair. There have been previous discussions around the policy intent of statutory officers and the iwi participation agreements, but we haven’t actually gone into the specific details of the clause, which is under this part. Are we still able to discuss specific clauses relating to this part, on statutory officers and iwi participation agreements?

CHAIRPERSON (Maureen Pugh): As long as we’re moving forward, that’s fine.

Dr LAWRENCE XU-NAN: Cool, OK. I’ll leave it—

Committee of the whole House

Very briefly—I’ll come back to the member Dr Lawrence Xu-Nan in relation to JMAs. I think he’s right, but I just want to double-check. Clause 186(4) is literally a provision to allow the Government to make regulations in relation to “monitoring, reporting, and information gathering for the purposes of this section” for territorial authorities. Essentially, it’s a vires thing. When you do regulations, you have to be able to point to an empowering provision, and that’s the one.

Dr Lawrence Xu-Nan: Madam Chair.

CHAIRPERSON (Maureen Pugh): Is this a continuation of that line of questioning?

Dr Lawrence Xu-Nan: Yeah, I now want to move on to—

CHAIRPERSON (Maureen Pugh): OK. Lawrence Xu-Nan.

Committee of the whole House

Thank you, Madam Chair. I do want to now move on to the Minister responsible for RMA Reform’s Amendment Paper on statutory officers. I want to look specifically at clause 188A(2). This is—and I’ve seen other instances—“The chief executive must be satisfied that the person has the knowledge, skills, and experience …”. I want to check if this is the standard drafting for the Minister, because the only other instance where I’ve seen such an independent officer is the Director of Regulation, which is one of the new individuals that’s been added in the Education and Training Act. However, in the Education and Training Act, with the Director of Regulation, there was a specific list of what some of those knowledge, skills, and experience would entail. It could, potentially, even include things like having understanding of te ao Māori, Te Tiriti o Waitangi, or local government, etc., but it isn’t listed here. Can I just check if the knowledge, skills, and experience listed here is something that is embedded, maybe under the document, under something within a particular ministry—what would be some of the criteria for clause 188A(2)?

Committee of the whole House

The answer is this: yes, it’s similar to other statutes—widely used across other statutes.

Committee of the whole House

I have a few questions about clauses 198A through 198C. These agreements seem to no longer create participation rights; they just codify the existing rights in the Act. That’s set out at clause 198C(1)(a), with the words “iwi authority participation provided for in this Act or the Natural Environment Act”. I just want to clarify with the Minister that any other agreements that are entered into by councils with iwi—that also codify other arrangements between them—are something separate and they’re not provided for in this, but they continue to exist.

I also want to ask: at clause 198A(4) of Amendment Paper 709, this provision allows—it’s not just silent to the timing that’s required; it’s specific that it can be any amount of time. Is it his intention that it would be legal and that there would be no right of challenge if a local authority was to receive a representation from an iwi authority to enter into one of these arrangements and they didn’t reply for 10 years? That seems to be what this means.

I also want to ask him whether we’re meant to read “local authorities”, in the context of Auckland, as meaning only the governing body or also the local boards. It is common for local boards in the Auckland context to enter into iwi participation arrangements at their local board level because they are the authority that appropriately has an arrangement with the local iwi. For example, when Cameron Brewer was the chair of his local board and I was general counsel for a local West Auckland iwi, I did make that representation to him and he did reply quicker than a decade, so that is good; there is precedent there for getting some of these things done quickly. We didn’t get to resolve that, though, because it is difficult to resolve those arrangements, and they should rightly be negotiated between both parties.

In that instance, I also want to ask the Minister: he specifically used the word “iwi”. That makes policy sense generally, but there are a few hapū who have arrangements which are much more like iwi, in the context that we find ourselves in, like Ngāti Whātua Ōrākei, which has several arrangements not only with the Crown directly but also over planning arrangements, say of Ōrākei board’s area at Takaparawhau, at Bastion Point. That is a hapū; it has settled more like an iwi. Do we just read “iwi” there to mean hapū? I think so.

Another question about new clause 198B(2); the notification to the Minister: why does the Minister need to know that a local authority is contemplating entering into an iwi participation agreement? There is an interest for the Crown, here, in ensuring that participation is working, but not necessarily in each arrangement between the iwi and local authorities, given that there may be far more of these than there are local authorities. Does that then relate to the clause 201 powers, where the Minister may make interventions and investigations along the way? Is that why it exists there?

At new clause 198C, I just wanted to clarify what’s in and what’s out of scope, and then, for those sorts of arrangements which are out of scope—which two bodies corporate can enter into, like covenants, like arrangements for services where representations are made by one body to the other in an advisory capacity—what are those?

Committee of the whole House

OK, I’ll take a few things there. In relation to Dr Lawrence Xu-Nan’s point around Joint Management Agreements (JMAs), I’m advised that clauses 197 and 198 apply only to these clauses, not to other JMAs—for example, in Treaty settlement clauses which are in the bills.

Let’s take Arena Williams’ various different points. I mean, yes, it is true that there will be other agreements that people may wish to enter into, as she said at length. In relation to the question about why there’s new clause 198B, the short answer is because we’re interested. One of the things that happened when there was an explosion in Mana Whakahono ā Rohe was that trying to find out exactly what was going on was a nightmare, because the system is extremely decentralised. Part of what we’re doing is creating more data and more information, so we just put a statutory hook in there in relation to that. And, yes, I do think the Crown needs to know what they say, so they can be monitored, although it’s mainly an information-gathering exercise.

In relation to new clause 198A(4), these are voluntary agreements, so there’s no obligation on local authorities to enter into them. They can be requested, but they’re not mandatory; they don’t have to be agreed.

Arena Williams: Yeah, but these are procedural rules.

Hon CHRIS BISHOP: Yeah, sure, but the member asked the question around it; that’s the answer. There is a suffix clause there around having regard to recommended response times prescribed in regulation, so it may be that there are recommendations made that you’ve got to respond within three months or something. I don’t know. I’m not saying that’s what it will be, but we may well get there.

Committee of the whole House

Tēnā koe, Madam Chair. I wanted to ask some pāti tāpiri to my colleague from Labour, Arena Williams, in relation to the iwi participation agreements and picking up on the uniqueness of Tai Tokerau; Tai Tokerau being unique, particularly in the Ngā hapū o Ngāpuhi space.

What is the definition of “iwi” for this legislation, because, in the North, we have large natural groupings with Crown mandate now entering into negotiations with the Crown? Therefore, would these hapū groupings—for example, Te Whakaaetanga tribal grouping in the Bay of Islands—then be deemed iwi enough to be able to enter into iwi participation agreements? Is this a Crown definition of what “iwi” is in 2026, or can we figure out ourselves as iwi Māori? What are the definitions of what Crown iwi is for the purposes of the bill?

Further, when we hear from the Minister responsible for RMA Reform that they just want to know for information-gathering purposes around who’s developing these iwi participation agreements—

CHAIRPERSON (Barbara Kuriger): We’re a little bit out of scope of this part, here, because we actually discussed some of this in the “Interpretation” clause this morning, when I was here with Mr Court earlier today.

HŪHANA LYNDON: I’m picking up particularly from a Ngā hapū o Ngāpuhi perspective, which hasn’t been traversed in the committee yet. Nobody’s talked about the large natural grouping policy of Te Arawhiti or Te Tari Whakatau now and the way whereby the Crown is now mandating different types of groups, now, which are similar to our Ōrākei example. That’s a uniqueness that we haven’t traversed yet.

Further, I just wanted to ask: we’re going to information gather and we’re going to monitor in terms of what the agreements look like—ka pai—but what happens if the Minister doesn’t like the contents of an agreement, an iwi participation agreement? Is there a veto provision for the Minister—

Hon Chris Bishop: No.

HŪHANA LYNDON: —on what a local authority might be doing?

CHAIRPERSON (Barbara Kuriger): The answer to that is no; he’s just answered it.

HŪHANA LYNDON: OK, he’s just looking at it, ka pai. Then, new clause 198D, “Termination or renegotiation of iwi participation agreements”. This one could be the juicy part of it, eh, where there could be the iwi authority, including hapū, who may withdraw from an iwi participation agreement. In the breakage or a degrading of a relationship between iwi Māori and local authorities, or with the Crown—you know, there’s breaches happening right now—what happens if we have a degrading of the relationship and the iwi pulls out? How do we build that trust again to seek to renegotiate what the involvement of iwi is in that space? Just because they pull out of an iwi participation agreement does not mean that they forfeit their rights to have a voice and to be able to participate in the planning system. Kia ora.

Committee of the whole House

That, of course, is right: the iwi participation agreements are voluntary and they are mechanism for giving effect to the other things in the bills—so that, of course, is right. You don’t have to be part of an iwi participation agreement to exercise various different things in the bills, although, if you wish to enter into one with a local authority, you can. Some people will; the last few months demonstrate there is huge enthusiasm from some people for that, and I look forward to seeing those in due course. If people want to pull out, they can; that’s the point. Now we’ve made it voluntary, and if people want to do it, they will, and if they don’t, they won’t. It’s as simple as that.

I’m advised that the definition of “iwi authority” is actually in clause 3, which we dealt with yesterday afternoon, which means “the authority that represents an iwi—

Hon Rachel Brooking: We weren’t here in the afternoon.

Hon CHRIS BISHOP: —and that is recognised by that iwi as having authority to do so”—what’s that?

Hon Rachel Brooking: We weren’t here in the afternoon; we were here in the early evening.

Hon CHRIS BISHOP: OK, early evening.

CHAIRPERSON (Barbara Kuriger): We did have an early evening.

Hon CHRIS BISHOP: Sorry, it’s been a long 24 hours. I’m also advised that groups of hapū can be iwi authorities for the purposes of these bills.

To the “large natural grouping” policy that the member mentions, I’m advised it’s irrelevant for the iwi authority definition here. So that deals with that, and that deals with the questions.

CHAIRPERSON (Barbara Kuriger): Now, given the answer that the Minister responsible for RMA Reform has just given, and since I’ve been back in the Chamber and I’ve been watching back in my office, we are getting repetitive of earlier parts. I see we’ve got up to the 190s—the high 190s—in terms of clauses. We still have a Subpart 2 in this piece, and there’s still some schedules, but I don’t want to go back over old ground, so I’m going to look for some new questions. I want specific clauses to be mentioned as the questions are asked, and I don’t want speeches. Hon Rachel Brooking, I’m going to take you first, as you are on your feet.

Committee of the whole House

Thank you, Madam Chair. Thank you for thinking of my knees. I’m going to pop over to Schedule 9, and I know this isn’t in the order, but last time I missed the schedules, and I do have some short questions on Schedule 9. That’s not to say that other people won’t go back to the 200s.

CHAIRPERSON (Barbara Kuriger): I like your methodical order, so I would say just ask your questions on Schedule 9, and we’ll just list them, and then the Minister can—

Hon RACHEL BROOKING: Schedule 9, yes. I’ve just got three main questions, I think, on Schedule 9. The first one is just a general one that I’ve been asking about a number of these schedules, and that is: is this largely replicating what’s in the Resource Management Act (RMA)? I think it is, but it would be great if the Minister could confirm that.

Then I’m interested in the number of appointments of the members of the Environment Court. This is at Part 2, clause 9(1), which is on page 460 of the Amendment Paper. It says, “At any one time,—(a) no more than 10 Environment Judges may hold office; and (b) any number of alternate Environment Judges may hold office.” I’m just wondering if the Minister has given consideration if, with the new system, it will mean more churn in the Environment Court and if, in fact, there will need to be more Environment Court judges. He might have some answer in relation to the new Planning Tribunal and whether that will take off some of the load, but these questions will probably be about plans. What consideration has gone into that? That’s my second question.

Then I will just go over some pages to Part 3, which is on the powers of the Environment Court. I’m just interested in clause 45, which is on page 472. There’s an addition that “(5) This clause applies to the hearing of appeals on the merits, but does not apply to the hearing of appeals on a question of law.” If the Minister can just explain that insertion, that would be great. There’s a similar one over the page at clause 48, when the Environment Court may order change to proposed plans—“The power to order changes to a proposed plan does not apply if the court heard the appeal on a question of law.” Just if the Minister can explain what’s going on there with appeals on the points of law, that would be great. That’s his changes, number of judges, and generally if it’s fair to say that it’s fairly similar to the RMA.

Committee of the whole House

Question one: yes, in relation to similarity to the Resource Management Act (RMA). Question two: in relation to the number of Environment Court judges, the short answer is we would love there to be fewer cases. We don’t know exactly because it’s impossible to predict. Obviously, the Planning Tribunal, as member says, will make a difference there, we hope. Stuff that would ordinarily go up through the Environment Court pathway takes a long time and is very expensive for everybody and it will be—there’ll be less of that and more in the tribunal. As the member probably remembers from her time as a Minister, if we appoint more than 10 Environment Court judges, we’ve got to make a Budget bid, so the Minister of Finance has been relatively generous with me when it comes to resource management reform so far, but let’s not push our luck. We can come back to that. We can have a look at that in the future, depending on fiscal requirements at the time and the workload through the system. I will just say here and now that I’m surprised the member has not asked about it. We did contemplate a name change to the Environment Court. We were thinking about the Planning and Environment Court, which was going to be called PEC.

Hon Rachel Brooking: Excellent.

Hon CHRIS BISHOP: Yeah, I know. It would be fair to say it did not meet with the approval of the court. What I wanted was a Planning and Environment Court and a Planning and Environment Tribunal, which is going to be PET. Anyway, we’ve decided—

Hon Damien O'Connor: Perfect for you.

Hon CHRIS BISHOP: What was that?

Hon Damien O'Connor: Perfect for you.

Hon CHRIS BISHOP: Well, that’s right. I am the manager of the pet bonds through another tribunal, the tenancy tribunal. But we decided not to do it, so we’ve kept with the Environment Court name. It lives on, as we call it, in the Planning Tribunal and Environment Court. Anyway, I digress. I don’t know if the member was going to ask that, but I’ve answered it in case she was going to. Clause 45(5), I’m advised, reflects the split between merits and points of law on plan appeals in bills. Under the RMA, all the appeals are merits.

CHAIRPERSON (Barbara Kuriger): Lan Pham—no, I’m sorry, I’ve indicated that we’ve got some schedules to go through. I’m sure the public, for a lot of reasons—it’s the first time some of this has been clarified. The questions are sensible, and as long as we get no repetition—Lan Pham.

Committee of the whole House

Thank you, Madam Chair. I’m moving to Subpart 3, “System performance”. [Interruption]

CHAIRPERSON (Barbara Kuriger): I can’t hear the member. Please start again.

LAN PHAM: Thanks, Madam Chair. I’m moving to Subpart 3, “System performance”, of Part 5, and I’m particularly interested in this beginning with clause 209B, because this is about the “Chief executive’s system performance function”. This is absolutely critical because it’s a new clause that is all about how we actually assess the success or otherwise of the entirety of these reforms. What I’m really interested in is the chief executive’s roles under this clause, which is about monitoring and reporting. Now, it talks about two—well, really three—parts of (a), the “monitoring and reporting”, first, about “the efficiency and effectiveness of [the] system” and then, “(ii) the extent to which the goals of the Acts are achieved;” and then, finally, “(b) identifying and responding to system-wide issues.”.

Now, why I would like the Minister to please comment on this is that we know that this new mega-ministry Ministry of Cities, Environment, Regions and Transport (MCERT) is the CE that is tasked with this assessment, and I’m interested as to what measures are contemplated here. It’s a genuine question because if you were coming from the perspective of, say, the previous Ministry for the Environment, it would be relatively clear cut—taken, of course, with the general challenges with assessing environmental outcomes and performance. It would be relatively clear cut as to what an efficient and effective system would be. When you have this entire system now at MCERT, where there are multiple functions of the CE, how is that individual and that performance function really able to be assessed?

I’d really like to hear the Minister’s comments on that, because it brings me to an Amendment Paper that I have. Again, I’ll just move directly on to clause 212, because this is the chief executive producing a system performance report every three years. What was really disappointing in the changes that were made at select committee is that in the original bill, which was introduced to Parliament here, they were really clear directives in this clause 212, which have been deleted. These were around councils actually assessing how they manage environmental limits, specifically in an efficient and effective way and around whether additional Government intervention is recommended. It also talked about whether there were interventions that regional councils themselves could actually implement to manage those environmental limits. Now, those provisions in clause 212 have been taken out. Why were they taken out, and why is it such that it cannot specify in these bills that that is the exact kind of thing that we would want the chief executive to be reporting on? Would the Minister consider, at this very late stage, returning these clauses, which is what I’m proposing in my Amendment Paper? It’s very cut and dry stuff. It actually just gives us really clear information about what might be happening specifically in the environmental space compared to MCERT having to juggle all of those roles, which we know the CE must do. I’m really interested in the Minister’s response to that. Thank you, Madam Chair.

Committee of the whole House

I’ll come back on the second one; I’ll just take some quick advice. But I think I can deal with it by saying the member Lan Pham’s point around limits is well made, and data to inform the limits clearly is going to be an important part of the ministry, alongside regional councils, in relation to their respective functions under the bill or Act. So I don’t think a lot turns on that. I didn’t really understand her point, to be honest. Chief executives (CEs) of Government departments have multiple different functions. That’s part of what being a CE is. Clearly, the CE himself, or herself, is not going to be the one doing it. This is part of legislation: the CE is given the responsibility to do it, but in reality, it’s actually the agency; it’s just that the law says the CE has to do it, but there’s delegation authorities in relation to that.

Clauses 209B through 212 are really important. I think the member herself—I think—would probably accept the absence of clear data and accountability frameworks in the current Resource Management Act (RMA) is a big part of the problem as to why the RMA failed. Now, in the age of modern data and digital systems and federated data infrastructure, and even before you think start thinking about artificial intelligence, the ability for central government to have much richer data and monitor how the system performs is critically important.

Just as an aside, the Ministry for Cities, Environment, Regions and Transport is not a mega-ministry, it is way smaller than most other Government agencies. It is a small-ish shop of people that brings together all of the things that the member claims to be concerned about, which is integrated management of transport, environment, local government, infrastructure, natural hazards, climate change—all in the same place. So it’s a bit weird that she says, you know, that the Government’s approach to the Planning Bill and the Natural Environment Bill is a disaster because it’s disaggregated all of these different things into separate bills that all have to be integrated, but then she wants to have a ministry of transport, environment, local government, and infrastructure all by itself, as if that was ever a particularly sensible idea. Her whole party’s point—

Lan Pham: Madam Chair, point of order.

Hon CHRIS BISHOP: —is that you can’t disentangle the environment and everything else.

CHAIRPERSON (Barbara Kuriger): I’ve got a point—

Hon CHRIS BISHOP: I agree with her.

CHAIRPERSON (Barbara Kuriger): I—

Hon CHRIS BISHOP: That’s why we created a ministry to give effect to that.

CHAIRPERSON (Barbara Kuriger): Minister! I have a point of order from Lan Pham.

Lan Pham: I’m really not appreciating the Minister putting words in my mouth. That’s not what I think, and he’s speaking as if that’s what I’m saying. That’s not what I’m saying at all.

Hon CHRIS BISHOP: OK, all right. I apologise. I thought I’d heard the member make those different points before, but if it’s not her view, I withdraw and apologise.

CHAIRPERSON (Barbara Kuriger): Thank you. I would also ask that—I thought we were moving into a different piece of legislation at that point, so can we—[Minister resumes seat]

Committee of the whole House

Madam Chair, I’m conscious that you said a little while ago you don’t want to go backwards to previous sections, but I have just tabled an amendment—

CHAIRPERSON (Barbara Kuriger): Yes, I saw that, and I’m not up to speed. Has the Minister also—

Hon PHIL TWYFORD: It’s a direct response to the comment made earlier by the Minister responsible for RMA Reform. It proposes a new, after new clause 188B, inserted by the Minister’s tabled amendment to Amendment Paper 709—it’s a mechanism for the approval by both the Minister and the statutory officer of the urban land markets compliance framework. It requires the proposed framework to be provided by the Minister to the statutory officer, to the statutory officer being able to provide advice back; the Minister then being required to not approve it unless the statutory officer advises that it’s sufficient, or if the Minister wants to override the advice, the Minister can, but they have to publish the advice. So I put that on the Table for the Minister to consider.

CHAIRPERSON (Barbara Kuriger): OK. I’ll let the Minister absorb that one for a moment.

Committee of the whole House

Thank you, Madam Chair. I also want to move on to a further section. I want to move on to Schedule 10, which is under clause 216 on the Planning Tribunal. I’m going off Amendment Paper 709 and I’m starting with clause 3 of Schedule 10, page 497. One of the first things that that has changed in this amendment is it changes the term “chairperson” to “Principal Adjudicator” and “Deputy Principal Adjudicator”. I want to check with the Minister responsible for RMA Reform on those adjustments in this particular schedule.

I also want to check with the Minister in terms of—I’m looking at the requirements, so I’m looking at clause 4(3). Now, this is interesting because we just had, a little while ago, the Regulatory Systems (Tribunals) Amendment Act where, as part of the update, the tribunal rules have changed to not simply allow the chief adjudicator for the tribunal in those instances to be—the person to be a barrister or solicitor of the High Court of New Zealand for at least seven years, because that has locked one particular person in as the principal adjudicator and they could not find a replacement for her. So in that particular bill, they changed it to anyone on the tribunal must have standing as a barrister or solicitor of the High Court of New Zealand for at least seven years. I want to check with the Minister whether, in this case, this would then align with some of the other changes we have just recently seen in our tribunals or in the legislation for tribunals. And if not, is there a sufficient enough pool of people that whoever is the Principal Adjudicator and Deputy Principal Adjudicator would—even though we’re looking at, I think, a future subclause talking about a five-year term—be able to step down because there is a sufficiently big enough pool of people to fill those spaces? I want to check with the Minister if that has been considered: rather than the Principal Adjudicator and the Deputy Principal Adjudicator being the person with that experience, to have anyone on the tribunal with that particular experience—if that has been considered.

One of the other questions I have is the insertion now—because we’ve got two additional roles in this amendment: we’ve got the Principal Adjudicator and Deputy Principal Adjudicator. But in clause 5(6)—this is on page 499—the “Deputy Principal Adjudicator has all of the functions, … of the Principal Adjudicator, subject to any directions”. Is there a situation—are we looking at, potentially, the Deputy Principal Adjudicator and Principal Adjudicator would not be presiding over the same dispute? Is that what we’re looking at here, or are they all going to be overseeing the same dispute process as part of the tribunal? That’s my second question.

My third question—I have four for this particular part—is on clause 7A, “Oath of Office”, on page 501. This looks like a new insertion, but I just want to check with the Minister that this insertion is simply something that has been left out and is being added back in.

This might be quite a niche question—again, this came up previously when we were looking at other adjudicators for other tribunals; in this case, the Disputes Tribunal that I’m referring to specifically. Clause 9, “Remuneration”—one of the tidy-ups when we were looking at the Disputes Tribunal a little while ago was the fact that the rate is determined by Remuneration Authority, but they are no longer considered an employee, but are considered self-employed in the context of being an adjudicator for the Disputes Tribunal, from memory. Part of that would also affect, for example—you know, it would have tangible material implications because it changes the amount of ACC, for example, that adjudicators will pay for Disputes Tribunal. I want to check, for clause 9, “Remuneration”, whether the Principal Adjudicator—

Hon CHRIS BISHOP: Madam Chair.

Dr LAWRENCE XU-NAN: Oh, sorry, Madam Chair—just, I’ll finish this—

CHAIRPERSON (Barbara Kuriger): No, your time’s up, so I’m calling the Minister.

Committee of the whole House

You’re literally reading out things, saying, “How’s remuneration dealt with?” Parliament sets up tribunals all the time. There’s a Tenancy Tribunal; there’s heaps of them.

Dr Lawrence Xu-Nan: But are they employees or are they self-employed?

Hon CHRIS BISHOP: It doesn’t actually matter, Lawrence. There’s a standard form process for dealing with this stuff, which is clause 9 of Schedule 10: “(1) The Principal Adjudicator and each adjudicator—(a) must be paid a salary, fee, or allowance at the rate determined by the Remuneration Authority; and (b) must be paid” expenses, expenses, etc., etc.

Basically, all of your questions can be dealt with by the fact that we set up tribunals all the time and it’s largely standard-form stuff. The Principal Adjudicator role aligns with practice in other tribunals—for example, the Principal Disputes Referee and the Disputes Tribunal also reflects the fact they have an adjudicator role.

Proposed new clause 7A of Schedule 10 is the same point, which is the oath of office, which is added to be consistent with other tribunals, because anybody else who is in another tribunal—like the Disputes Tribunal for example; the Tenancy Tribunal—has to take an oath of office. It was probably left out from the original draft, and it’s one of these things that gets tidied up.

There will be a principal and deputy principal adjudicator. It’s the standard form. The Governor-General will do it on the recommendation of the Attorney-General—who, at the moment, happens to be me. They have to recommend it, and then the Attorney-General must consult the Minister or Ministers responsible for the administration of the Act and the Natural Environment Act. There are some requirements around who they need to be. They have to have been standing as a barrister and solicitor for at least seven years, and then have the knowledge and experience—again, this is all just standard-form establishment stuff for a tribunal. It’s not that complicated.

Hon Members: Madam Chair.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking has indicated to me that she has just the last little tidy-up questions on this section.

Committee of the whole House

Yes, on Schedule 10—thank you—which I haven’t commented on before. Now, I promise not to ask the Minister responsible for RMA Reform about the establishment of tribunals in the new legislation, but I do have a couple of questions.

In Schedule 10, at clause 7, “Appointment of adjudicators”, there’s been a change at subclause (3) that somebody who is an Environment Commissioner or a Deputy Environment Commissioner for the Environment Court now may act as an adjudicator. I see this as an improvement, because it could be strange if they must be treated as an adjudicator if they were—in fact, that could mean that they could act on the same case when it was an appeal from the Planning Tribunal that went to the Environment Court. So if the Minister can confirm, when it comes time, that that’s the reason for the change as I’ve given it, that would be useful.

Then a little question on clause 12: there’s a new subclause (3) which is “Witnesses and counsel appearing before the tribunal to have the same privileges and immunities as they would if the hearings were proceedings in the District Court.” I presume that this is similar to other tribunals, but I was just wondering if the Minister can confirm that.

Now, going on to clause 14, “Review of decisions of local authorities”, I think I asked a question about a change that’s been made relating to the Planning Tribunal being able to have jurisdiction over a private plan change. I did ask about this in an earlier part of the bill, and I don’t think I got an answer. Clause 14 sets out some of the jurisdiction of the Planning Tribunal, and most of it is fairly discrete things that make sense, that it would go to a planning tribunal rather than needing to go to the full Environment Court, but they don’t relate to plan changes. However, there’s this insertion at paragraph (ba) that, now, it can be an application for a private plan change. Is it just an application—so is it quite a narrow jurisdiction here, and is that the change?

Then—oh yes, I’ve got a couple more comments. One is at paragraph (ka)—so, still on clause 14—and that’s relating to regulatory relief. So regulatory relief would be that if there are disputes, they can come to the tribunal, and, as the Minister knows, we think that this is going to be a very inefficient process. So does he think that those cases—this is going back into the other part of the bill in terms of systems performance and monitoring. Will they be monitored, how many cases relate to regulatory relief, and how much that costs everybody.

Moving on to clause 26A, which is about the online publication of final decisions, this is new, and I just want to commend the Minister for including it. It drives me crazy when I can’t find tribunal decisions because they’re not online. But at subclause (4), there is a good reason not to publish a decision, and that is if they are of “limited public value:”. Does the Minister have any comment on what “limited public value:” would be?

I understand the other criteria in terms of the interests of justice, name suppression, or various suppression orders or statutory requirements, but what would that be? I’m hoping that the Minister agrees with me that it’s very good for access to justice if, in fact, these decisions that are made by various institutions and tribunals are easily accessible. Those are my questions.

Committee of the whole House

I’ll try and deal with all those; some of them were good questions. In relation to clause 7 of Schedule 10 about the “may act”, which the the Hon Rachel Brooking seemed to meet with approval there, I’m advised it’s a more appropriate description for a judicial officer. “A person who holds office as an Environment Commissioner or … Deputy Environment Commissioner”—with which I have some familiarity—“may act as an adjudicator appointed under this clause.”, and so that’s the more appropriate description.

In relation to clause 14(ba), I think the member asked in relation to private plan changes, and the member answered her own question there. There’s an addition, but a relatively simple one.

In relation to regulatory relief, yes, I expect that to be monitored as part of the system performance monitoring functions, and I’m sure it will be. You will be as interested in that as I am.

In relation to clause 26A, there was a very good question in relation to what are decisions of limited public value. Without second-guessing exactly how this will be interpreted, I would’ve thought that neighbour X and neighbour Y having a dispute, some random dispute over a finial on a roof or a house, or a complaint about some council busybody getting in the way of people trying to do thing —I mean, is it of limited public value? Well, it’s certainly amusing to see what the local council busybodies get up to. Is it of public value? Probably not—I don’t know.

Hon Rachel Brooking: If you’re the member of Parliament for the area and you want to know what’s going on, it’s very helpful.

Hon CHRIS BISHOP: Well, that’s a good point. I don’t know—I don’t know. Well, I mean, we’ll just have to wait and see—we’ll just have to wait and see. I could tell you so many stories about complaints I’ve had from people up and down the country, but in the interests of time, I will not. I’ll not bore members with stories about finials, and the internal layout of living rooms is a classic—council officers who get very upset about the way in which people point their couches at doors. It’s of great public interest that we design well-functioning living rooms and TVs that face the right way!

CHAIRPERSON (Barbara Kuriger): I think that’s a sufficient answer to that question.

Hon CHRIS BISHOP: OK, I’m going to deal with Phil Twyford’s point, and all that stuff’s out of scope now, by the way. It’s fantastic to get rid of all this stuff. [Interruption] What’s that?

Dr Lawrence Xu-Nan: Feng shui is important.

Hon CHRIS BISHOP: I can’t hear you.

CHAIRPERSON (Barbara Kuriger): He says that feng shui is important.

Hon CHRIS BISHOP: Feng shui is not in scope of the Planning Bill. Lawrence, you can arrange your living room, and, in fact, your kitchen, how you like. The New Zealand central government has no interest in the way in which you design your living room, my friend. You’re one of many people who told The Spinoff that you would have me over for a beer, and so maybe I could enjoy it one day.

Anyway—[Interruption] Many people—I think I was No. 2. Who was the most popular? Grant McCallum was the most popular, I think.

Tom Rutherford: No, he wasn’t.

Hon CHRIS BISHOP: It was you—it was you.

CHAIRPERSON (Barbara Kuriger): OK, I think we’d better stop; otherwise, we’re going to have a massive scope here.

Hon CHRIS BISHOP: My apologies—my apologies. I’ve considered Mr Twyford’s amendment seriously. I’m keen to take this offline with him, but the challenge is that the framework for competitive land markets is not in the national policy direction and it’s not the intention to have it in the national policy direction; it’s in the standards.

The second problem is the Minister doesn’t make the framework. We’ve deliberately left the framework for competitiveness assessment frameworks to the land market officer, and so we’re actually trying to get the Minister out of making these approvals. The statutory officer makes the framework in their independent capacity, and so—yeah, I mean, is it perfect? Probably not. Could it be better? Yes, but that’s probably true of every piece of legislation we pass through the Parliament. I’m keen to take it offline and get the balance right.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that the Hon Phil Twyford’s tabled amendments to the Minister’s tabled amendments to Amendment Paper 709 replacing new clause 188B(2)(a) and (b) and inserting new clause 188C be agreed to.

A party vote was called for on the question, That the amendments to the amendments to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments to the amendments to the amendments not agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that Arena Williams’ tabled amendment to the Minister’s tabled amendments to Amendment Paper 709 inserting new clause 188C be agreed to.

A party vote was called for on the question, That the amendment to the amendments to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments to the amendments not agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that the Hon Phil Twyford’s tabled amendment to the Minister’s tabled amendments to Amendment Paper 709 inserting new clause 188C be agreed to.

A party vote was called for on the question, That the amendment to the amendments to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendment to the amendments not agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that the Minister’s tabled amendments to Amendment Paper 709 inserting clauses 188A and 188B be agreed to.

Amendments to the amendments agreed to.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking’s amendments to clauses 182 and 183A in Amendment Paper 709, set out on Amendment Paper 751, are out of order as being inconsistent with a previous decision of the committee.

The question is that the Minister’s amendments to Part 5 set out on Amendment Paper 709 as amended be agreed to.

A party vote was called for on the question, That the amendments as amended be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Amendments as amended agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that Steve Abel’s tabled amendment to clause 203(1) inserting new paragraph (c) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that Hūhana Lyndon’s amendment to clause 210 set out on Amendment Paper 733 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that Lan Pham’s amendments to clause 212 set out on Amendment Paper 728 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

A party vote was called for on the question, That Part 5 as amended be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Part 5 as amended agreed to.

Committee of the whole House

Part 6 Enforcement and other matters, proposed new clause 295, and Schedules 8 and 11

CHAIRPERSON (Barbara Kuriger): Members, we come now to Part 6. This is the debate on clauses 217 to 294—“Enforcement and other matters”—including proposed new clause 295; Schedule 8, “Enforcement matters”; and Schedule 1 “Amendments to other legislation”. The question is that Part 6 stand part.